Put the Spies Back Into Spying

June 7 (Bloomberg) -- The U.S. National Security Agency’s
mission is to gather information about foreign terrorists and
foreign powers, not to carry out wholesale domestic
surveillance. Apparently, however, its technical capabilities
have outrun all existing legal constraints. It is routinely
vacuuming up data about the communications of all Americans and
copying information flowing from servers run by giant American
online companies.

The NSA, now constructing a massive $2 billion data-storage
facility just outside Salt Lake City that will presumably be
capable of chewing through everything each of us says, needs to
be newly reined in. After all, the most valuable intelligence is
information from people everywhere, and we have access to that
gold mine only if the U.S. remains a beacon to the world.

This isn’t the first time the U.S. has faced a crisis of
overeager intelligence gathering. In August 1945, the
predecessor of the NSA asked American telegraph companies to
provide it with warrantless access to all international
telegraphic traffic into and out of the U.S., even though this
request was illegal. Nicknamed Project Shamrock, the outrageous
effort continued for 30 years.

Other programs spied on purely domestic communications of
named targets, based on the flimsy legal argument that these
interceptions were incidental to foreign intelligence gathering.
In 1975, a Senate committee led by Chairman Frank Church of
Idaho revealed the existence of these programs.

Legal Framework

The Church Committee’s work led to the Foreign Intelligence
Surveillance Act, which lays out procedures limiting the
physical and electronic surveillance and collection of “foreign
intelligence information” between “foreign powers” and “agents
of foreign powers.” In 2008, however, FISA was amended to
provide broad authority for the interception and collection of
communications involving people inside the U.S., too.

Today, the NSA can claim that as long as it isn’t
“intentionally targeting” people in the U.S. it may acquire
information without significant oversight. The agency apparently
reasons that wholesale collection of information about calls and
communications domestically doesn’t amount to “targeting” of any
identifiable American. It finds further comfort in its
distinction between the “content” of calls and other
communications as opposed to “information about” calls, and
claims that it is merely gathering “business records” subject to
lesser constitutional protection.

Outside the U.S., all bets are off: It appears that the NSA
routinely “mirrors” data stemming from servers run by Google
Inc., Yahoo! Inc., Facebook Inc. and a host of other online
companies.

In 1975, Senator Church warned that the NSA apparatus “at
any time could be turned around on the American people and no
American would have any privacy left, such is the capability to
monitor everything: telephone conversations, telegrams, it
doesn’t matter.”

Information about calls and other electronic communications
includes extraordinarily fine-grained data concerning the
speaker’s location at every moment of the day; these patterns
reveal intimate facts about our lives because they show networks
of acquaintances and daily routines. We live online through
Google and Facebook.

Now that Americans know they are being subjected to
wholesale interception of their communications, we need a new
Church Committee to investigate and limit the NSA’s powers.

The NSA has the capability to collect traffic from entire
networks without “intentionally targeting” any particular
person. Its new Utah facility indicates that the agency plans to
be capable of storing raw communications data for later
exploitation and analysis.

‘Meritorious’ System

Some politicians claim that this indiscriminate inhalation
of all our life-patterns is appropriate even without judicial
oversight. Senator Saxby Chambliss of Georgia, the Intelligence
Committee’s ranking Republican, says that the system “has proved
meritorious because we have gathered significant information on
bad guys and only on bad guys over the years.” Congress appears
to be acceding to the mass collection of data in the belief that
this technical capability simply must be used.

The focus on capability is misguided. It shouldn’t matter
that our nation can listen to everything we say and track our
every movement. We are at risk of relying too much on technical
gimmickry to protect ourselves.

It is, instead, our liberties that make us an appealing
country. The best intelligence, human intelligence, flows from a
different metric: the belief that America’s fundamental
character is based on freedom and justice. If we let our rights
become merely a convenience, we risk losing our appeal to those
people who will help keep us safe, and hand a victory to those
who would do us harm.

(Susan Crawford, a contributor to Bloomberg View and a
professor at the Cardozo School of Law, is the author of
“Captive Audience: The Telecom Industry and Monopoly Power in
the New Gilded Age.”)